Watson v. Internet Billing Co., Ltd.

• Decision Date: 22 September 2004
• Docket Number: No. 4D03-3925.,4D03-3925.
• Citation: 882 So.2d 533
• Parties: Stephen WATSON, Appellant, v. INTERNET BILLING COMPANY, LTD., a Florida Limited partnership, Appellee.
• Court: Florida District Court of Appeals

882 So.2d 533

Stephen WATSON, Appellant, v. INTERNET BILLING COMPANY, LTD., a Florida Limited partnership, Appellee.

No. 4D03-3925.

District Court of Appeal of Florida, Fourth District.

September 22, 2004.

Gary D. Weinfeld of Gary D. Weinfeld, P.A., Miami, for appellant.

Craig J. Trigoboff of Waldman, Feluren, Hildebrandt & Trigoboff, P.A., Weston, for appellee.

FARMER, C.J.

A defendant appeals from a trial court's denial of his motion to vacate a clerk's default and his companion motion for relief from the consequent final judgment. We affirm the denial as to the clerk's default but reverse as to the final judgment, upon a holding that the claim in question did not involve liquidated damages and therefore the defaulted defendant was entitled to notice of any trial on damages.

Plaintiff alleged that it had been retained under an oral contract to develop and place certain advertising for a firm with which defendant was a principal. It further claimed that all the defendants fraudulently induced plaintiff to "entrust" unspecified funds to the advertising firm for that purpose. It claimed that defendant, among others, converted such funds or unjustly enriched himself by failing to pay media in which such advertising was published, or unlawfully retained such funds. In an affidavit after the clerk's default was entered, the advertising firm "quantified" the total amount by stating the damages sustained "as a result of Defendant's misconduct" at $465,702.60 and that it had incurred attorneys fees of $10,194.95. The trial court entered a default judgment in that total sum.

The issue whether defendant was entitled to notice and a trial on damages depends on whether the damages were liquidated. Liquidated damages are specific and precise sums of money immediately apparent from the express terms of the contract itself, or determinable therefrom by mathematical calculation, or fixed by a specific rule of law. Hill v. Murphy, 872 So.2d 919, 922 (Fla. 2d DCA 2003) ("Damages are liquidated when they can be determined by mathematical calculation or the application of definite rules of law."); Bowman v. Kingsland Dev. Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983) ("Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law."); Hartford Fire Ins. Co. v. Controltec Inc., 561 So.2d 1334, 1335 (Fla. 5th DCA 1990) ("In a contractual setting, liquidated damages exist when a specific sum of money has been expressly stipulated or agreed to by the parties for recovery by either party following a breach of the contract by the other."). When the complaint alleges only general damages without demanding a specific amount, damages are deemed unliquidated when a default admitting liability is entered. Hill, 872 So.2d at 922; Dunkley Stucco Inc. v....